27 S.D. 642 | S.D. | 1911
This is an appeal by the defendants from a judgment rendered in favor of the plaintiffs. The action was instituted by the plaintiff as guardian ad litem of the three infant children of Marie Whaley, deceased, for their benefit, to recover damages claimed on account of the death of Marie Whaley on the 6th day of February, 1909, caused by a collision with a train of defendant company’s with the carriage in which she was riding at a highway crossing, in the city' of Flandreau in this state. Marie Whaley, -the mother of the said infants, was killed at the same time with her husband, Thomas Whaley, and was riding with him in the same carriage at the time she was killed by defendant’s train. The facts connected with the accident are so fully stated
It is disclosed by the evidence that the collision resulting in the death of Marie Whaley occurred between 10:30 and 11:30 o’clock in the evening; that Marie Whaley was a woman about 51 years of age, in full possession of all her faculties of both hearing and seeing, and had upon her head a small fur cap and what was termed a “fascinator,” composed of woolen material. In the former case, this court held that the jury were fully justified in finding from the evidence, that the railroad company, in passing over its road within the limits of the city of Flandreau at a speed in excess of six miles an hour, and its failure to ring the bell or sound the crossing whistle at a point eighty rods easterly of the crossing, was guilty of negligence. As the evidence as to the speed of the train, the ordinance of the’city limiting the speed of trains through the city to six miles an hour, and as to the sounding of the whistle and ringing of the bell was practically the same in the case at bar as in that case, the jury were clearly justified in finding in the present case that the defendant was guilty of negligence, as held in the former case.
The important question in this case, therefore, as in the former case, is, Was the evidence such as required the jury to find that the deceased Marie Whaley, was guilty of contributory negligence? There was no evidence, bo far as is disclosed by the record, that Marie Whaley had any knowledge of the existence of the railroad track at a point known, as the “Mell Davis Crossing” and there was no direct evidence that she failed to look or listen for a train before or at the time her husband drove the team upon the track resulting in the collision and her death.
[1,2] As stated in our former opinion, it seems to be the settled law that contributory negligence is an affirmative defense in a case where the defendant has been shown to be guilty of negligence and must -be proven by the defendant, either by direct evidence, or by proof of circumstances from which only the in
The evidence upon contributory negligence in the former case, which was substantially the same as the evidence in the case at bar, was so fully considered and discussed in that case that we do not deem it necessary to again review the evidence or the authorities on this appeal, except that no evidence was offered on the part of the defendants proving or tending to prove that Marie Whaley had any knowledge of the existence of the railroad at the Mell Davis crossing, and hence the presumption that she exercised reasonable prudence and care in approaching the crossing was even stronger and more favorable to her than in the former case as applied to Thomas Whaley. After fully considering all the evidence in the case, we are clearly of the opinion that the jury were fully justified in finding that the presumption that Mrs. Whaley did exercise due care and precaution in approaching the crossing, was not over come by the testimony of the defendants.
Appellants further contend that, conceding Mrs. Whaley was free from negligence herself, she is still chargeable with negligence, if any, of her husband, Thomas Whaley; but the question of imputed negligence, when sought to be applied to a case like the case at bar, has never been passed upon by this court, and in the view the court has taken of this case, and,the preceding case involving the death of Thomas Whaley, we do not deem it necessary to consider or discuss that question on this appeal. The cases bearing upon this question are exceedingly numerous and conflicting. See note to the cases of Loso v. County of Lancaster, 8 L. R. A. (N. S.) 618, and Cotton v. Willmar & S. F. Ry. Co., 8 L. R. A. (N. S.) 643.
[3] It is' further contended by the appellants that the verdict was so excessive as to indicate the jury was under the influence of passion or prejudice, but in our opinion this contention is not tenable. The subject of damages in such cases is largely
In 13 Cyc. 375, the general rule is thus stated: “While the general rule is that the recovery must be confined to strictly pecuniary damages, the jury are not bound by any fixed and precise rules in estimating the amount of damages, save by the statutory limit, where such limit exists, but may give compensation for all injuries, proceeding from whatever source, and their discretion in fixing the amount of damages should not be interfered with by the court, unless it has been palpably abused. The rule has sometimes been thus stated: To justify interference by the court with the verdict of the jury, it must appear that some rule of law has been violated, or else that the verdict is so excessive or grossly inadequate as to indicate partiality, passion, or prejudice in the minds of the jurors.” And the learned annotator cites numerous authorities from the different states in support of the above proposition.
In this state, the amount which a party may recover in an action for damages for the death of a person, authorized by our Code, is not limited, and the only authority conferred upon the court to disturb the verdict of the jury determining the amount of damages in any case is found in section 301 of our Code of Civ. Proc., which provides: .“The former verdict or other decision may be vacated and a new trial granted on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party: * * * 5. Excessive damages, appearing to have been given under the influence of passion or prejudice. * * *”
It will be observed that the power of the court in this state to disturb the verdict of the jury in its assessment of damages is limited to cases where the verdict appears to have been given under the influence of passion or prejudice. .
‘ Our section 301 is identically the same as section 657 of the Code of Civ. Proc., of the state of California so far as it applies to the granting of a new trial for “excessive damages, appearing to have been given under the influence of passion or prejudice.”
This question was very fully considered by this court in the case of Davis v. Holy Terror Min. Co., 20 S. D. 399, 107 N. W. 374, in which a verdict had been rendered in favor of the plaintiff and against the defendant. It was contended in that case that
[4] This court is unable to discover in this case, any evidence of passion or prejudice on the part of the jury in estimating the amount of damages for these three minor children at $10,500 and hence we are not inclined to disturb the verdict of the jury as to the amount of damages awarded to the plaintiffs, in view of the evidence introduced on the part of the plaintiffs.
It is further contended by appellants that they are entitled to a reversal of the judgment for misconduct of counsel for respondents in his address to the jury. It appears from the record in the case that upon objection being taken to the remarks of counsel for the respondents, in his address to the jury he withdrew them, and that the court thereupon instructed the jury to disregard them in their consideration of the case. No ruling was made and no exception taken. The misconduct of counsel was made one of the grounds for the motion for a new trial, and upon affidavits made on the part of the counsel for the appellants and respondents, and the court overruled the motion.
[6] The ruling of the trial court denying -the motion for a new trial amounts to a finding of fact against the allegations in the affidavits made in support of the motion. State v. Campbell, 73 Kan. 688, 85 Pac. 784, 9 L. R. A. (N. S.) 533.
In the latter case the larned Supreme Court of Kansas held, as appears by the headnote, that: “Upon a motion for a new trial on the ground of alleged misconduct of the prosecuting attorney in his argument to the jury, affidavits in support thereof were contradicted by the affidavit of the prosecuting attorney, raising an issue of fact as.to what was said in the argument. The ruling of the trial court denying the motion for a new trial will be considered as a finding against the facts alleged in the motion.”
It is further contended by the appellants that the court erred in admitting the ordinance book of the city of Flandreau containing the ordinance prohibiting railroad trains, from passing through the city at a speed in excess of six miles an hour. The admission of this ordinance, however, was fully discussed in our former decision and this court in that case held that the court committed no error in admitting the same, and, as practically the same evidence was admitted in the case at bar, it will not be necessary to further consider or discuss that question.
[7] It is further contended by the appellants that the court erred in admitting in evidence the American Tables of Mortality, but we are of the opinion that the court committed no error in admitting this work. Tenney v. Rapid City, 17 S. D. 283, 96 N. W. 96; City of Lincoln v. Power, 151 U. S. 441, 14 Sup. Ct. 387, 38 L. Ed. 224; Elliott on Evidence, vol. 1, p. 93; Mott v. Railway Co., 120 Mich. 127, 79 N. W. 3. In the latter case the
[8,9,10] It is further contended by the appellants that the court erred m excluding two of the photographs offered in evidence on ’ ie part of the defendant, but we are of the opinion that the co' ' committed no error in excluding these photographs as they x re taken at points not material to the controversy in this case, 1 d the admission or rejection of photographs is largely within the c cretion of the trial court, and not being in the record cannot pro :ly be reviewed here. Carey v. Hubbardston, 172 Mass. 106, 51 N. E. 521; Hands v. Quincy, 171 Mass. 472, 50 N. E. 1042; Stewart v. St. Paul City Ry. Co., 78 Minn, 110, 80 N. W. 855.
[ 11 ] It is further contended by the appellants that the court erred in refusing to give the instructions requested on the part of the defendant, but after a careful examination of the instructions, we are of the opinion that the court committed no error in refusing
There are a number of other assignments of error, but in our opinion they do not possess sufficient merit to require a separate discussion by this court.
The judgment of the circuit com-: and order denying a new trial are affirmed.